Breaking: SCOTUS takes a pass on DACA

Ed MorrisseyPosted at 10:01 am on February 26, 2018

Looks like a gamble by Senate Democrats paid off. The White House hoped to get an expedited Supreme Court hearing for their argument that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional in order to gain enough leverage for a quick settlement. Instead, the top court balked, rejecting the application:

BREAKING: The Supreme Court declined to take up a key DACA case Monday, saying that the Court of Appeals should hear the case first.

The Supreme Court declined the request Monday. No justices dissented. The high court could still weigh in later, but the move suggests the justices want to allow one or more appeals courts to take up the question before considering it.

No appellate court has yet to rule on the issues raised by the Trump administration, which boil down to two main contentions. First, the administration argues that the program unconstitutionally violates immigration law under a tortured explanation of prosecutorial discretion, which would argue for an immediate end to DACA and its work permits. Second and more recently, the administration argues that because this program was created by the executive outside of statute, a succeeding executive can choose to end it at any time.

Apparently, not one of the justices thought these matter pressing enough to seize the case immediately. District courts have ruled in part against both arguments, although at least one recognized the White House’s right to end new applications to the program. The case is already moving to the appellate level, and it’s very likely to produce opinions in multiple jurisdictions. If those opinions conflict in any way, it becomes much more likely that the Supreme Court will take up the case … eventually.

However, this decision all but guarantees that the high court won’t hear this case in the current term. That means a final decision on DACA may not come until June 2019, long after the midterm elections and long after Trump wanted a win for his border wall. That gives Democrats, especially in the Senate, a much longer timeline in which to bargain. As long as courts keep forcing the White House to keep DACA benefits open at least for current recipients, the political pressure on them to cave to protect them remains at bay.

What does this mean for upcoming budget negotiations? It likely keeps them untangled from DACA and other immigration issues, and lets Chuck Schumer off the hook for his bungled attempt to link them in the first place. As long as the courts keep ruling in their favor, it should allow the Democrats to keep kicking the can down the road and forcing Trump into concessions on the border wall and chain migration. If this goes unresolved into the midterms, Democrats can use it to attack Trump without much fear of backfire.

That’s still a very big if, though. If appellate courts start reversing these orders and declaring DACA unconstitutional — which it clearly is — the White House will shut it down immediately to force Schumer to negotiate. They won’t wait for the Supreme Court to act if they don’t get forced to do so. Schumer’s still better off with a deal than without one, while the White House doesn’t really need a deal on DACA at all.